2024 (12) TMI 377 - AT - Income Tax

Unexplained investment - penny stock purchases - HELD THAT - We find that both sale and purchase were made on the same day. The AO as well as the CIT(A) have not given any reason as to why explanation of the assessee is not acceptable. They have relied on information from Investigation Wing, but the same has not been discussed in either of the orders. Content of the report of the Investigation Wing pertaining to the appellant has neither been discussed in the orders of lower authorities nor it was given to assessee for his rebuttal and explanation. The appellant has claimed that he has not made any investment in the above penny stock and he had undertaken only daily trading of very nominal amount and the profit earned thereon has been offered for tax. The appellant also submitted that he has also not earned any LTCG and claimed exemption u/s 10(38) of the Act. After considering the facts of the case, as discussed above, we do not find any merit in the addition made by the AO because such conclusion is not based on any specific information and evidence in respect of the assessee. On the other hand, claim of the assessee has not been rebutted by the AO by bringing any positive evidence or information. Hence, the addition is not liable to be sustained. Assessee appeal allowed.

Summary

Issues:
1. Confirmation of addition of unexplained investment by the Assessing Officer.
2. Treatment of Short-Term Capital Gain/Loss on shares purchased and sold by the assessee.
3. Consideration of penalty under section 271(1)(c) of the Income Tax Act, 1961.

Analysis:

Issue 1: Confirmation of addition of unexplained investment
The appeal originated from an order under section 250 of the Income-tax Act, 1961, for the assessment year 2014-15. The Assessing Officer (AO) had added an amount to the total income of the assessee on account of alleged unexplained investment in shares of a company. The assessee contended that the purchases and sales of shares were genuine, with same-day transactions resulting in a Short-Term Capital Gain (STCG). The AO and the Commissioner of Income Tax (Appeals) (CIT(A)) relied on information from the Investigation Wing, Kolkata, without providing specific reasons for rejecting the assessee's explanation. The Tribunal found that the AO's conclusion lacked specific evidence against the assessee, and the CIT(A) had not rebutted the assessee's claims with positive evidence. Therefore, the Tribunal set aside the CIT(A)'s order and directed the AO to delete the addition of unexplained investment.

Issue 2: Treatment of Short-Term Capital Gain/Loss
The assessee had purchased shares of a company and sold them on the same day, resulting in a Short-Term Capital Gain. The AO and CIT(A) did not accept the assessee's explanation regarding the transactions, relying instead on information from the Investigation Wing. The Tribunal noted that the purchases and sales were same-day transactions, and the assessee had offered the profit for tax. The Tribunal found no merit in the addition made by the AO, as it lacked specific evidence against the assessee, leading to the deletion of the addition.

Issue 3: Consideration of penalty under section 271(1)(c)
The AO had initiated penalty proceedings under section 271(1)(c) of the Income Tax Act, 1961. However, due to the Tribunal's decision to delete the addition of unexplained investment, the penalty issue became academic and did not require adjudication. The Tribunal allowed the assessee's appeal based on the deletion of the addition.

In conclusion, the Tribunal ruled in favor of the assessee, setting aside the CIT(A)'s order and directing the AO to delete the addition of unexplained investment. The other grounds of appeal were deemed academic and did not require further consideration.